DiMarco v. Sparks

212 A.D.2d 965, 624 N.Y.S.2d 692

Opinion

—Order insofar as appealed from unanimously reversed on the law without costs and motion denied. Memorandum: Supreme Court erred in granting plaintiffs’ motion to strike the notice to admit and to preclude defendants from using, in any manner, documents obtained by them from a non-party regarding the application of plaintiffs to refinance their mortgage in 1985. Although the documents were improperly obtained from the non-party without notice to plaintiffs (see, CPLR 3107, 3120 [b]; Matter of Estate of Kochovos, 140 AD2d 180), plaintiffs were not thereby prejudiced. None of the documents obtained was privileged and plaintiffs failed to demonstrate that defendants would not have been entitled to obtain those documents in the normal course of discovery, properly conducted (cf, Matter of Beiny, 129 AD2d 126, rearg denied 132 AD2d 190, Iv dismissed 71 NY2d 994). Thus, suppression of those documents pursuant to CPLR 3103 (c) is not warranted.

We reject the contention of defendants that they were entitled to summary judgment dismissing the complaint. In opposition to defendants’ cross motion, plaintiffs proffered evidentiary proof sufficient to demonstrate the existence of a factual issue regarding their claim that they acquired title through adverse possession or a prescriptive easement (see, City of Tonawanda v Ellicott Cr. Homeowners Assn., 86 AD2d 118, 120-121, appeal dismissed 58 NY2d 824; see also, Van Gorder v Masterplanned, Inc., 78 NY2d 1106). (Appeal from Order of Supreme Court, Onondaga County, Murphy, J.—Preclusion Order.) Present—Denman, P. J., Balio, Fallon, Callahan and Davis, JJ.